II. Governing PrinciplesA. Underlying Purpose of the Fourth Amendment
B. Digital is Different

United States v. Jones

Riley v. California

III. How the Fourth Amendment Applies to Electronic DevicesA. Papers and Effects

Electronic Devices are Containers and “Effects”

Data Stored in Electronic Devices are Fourth Amendment “Papers”

B. “Searched” or “Seized” – Standing

Expectation of Privacy Exists In Personal Electronic Devices

Totality of Circumstances Analysis

C. Government Actor

Federal, State and Local Law Enforcement and Non-Law Enforcement Government Actors

Private Searches

IV.Conclusion

I. Introduction

In today’s modern world, electronic devices are ubiquitous. Many people have two computers, one for their employment and another for personal use. Almost everyone carries miniature computers—the modern cell phone—with them everywhere they go. As electronic devices become smaller, faster and cheaper, people increasingly rely on them to store their sensitive data (e.g., pictures; financial and health records) and to communicate with others via email, text message and video conferencing. So it comes as no surprise that a law enforcement search of an electronic device is now a routine part of any criminal investigation, regardless of how minor or serious the crime.

As technology advances, though, the law struggles to keep up. That is particularly true when applying constitutional principles in the 21st century. The Fourth Amendment to the U.S. Constitution protects “persons, houses, papers, and effects, against unreasonable searches and seizures,” but a law written in the 18th century surely did not contemplate the modern smartphone, computer or digital camera, or law enforcement’s ability to make mirror copies of all the data stored inside in just a matter of seconds. Nonetheless, any lawyer who defends criminal cases needs to understand the mechanics of raising Fourth Amendment challenges to government searches and seizures of electronic devices in order to zealously represent his clients.

II. Governing Principles

A. Underlying Purpose of the Fourth Amendment

The Fourth Amendment to the U.S. Constitution states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment was aimed at eliminating the British practice of using “general warrants” and “writs of assistance” to rummage through American colonialists’ property and papers at will. Riley v. California, 134 S.Ct. 2473, 2494 (2014); Ashcroft v. Al-Kidd, 131 S.Ct. 2074, 2084 (2011). A general warrant listed a particular crime, but gave officers unfettered discretion as to who should be arrested and which places could be searched. A “writ of assistance” listed the objects of a search, but contained no restraints on where officers could search to find those objects. Steagald v. United States, 451 U.S. 204, 220 (1981). Intended to eliminate this abuse of the law, the Fourth Amendment requires the government, before seizing an item or searching it, to obtain a warrant, supported by probable cause, from a neutral magistrate, which particularly describes the place to be searched and the people or things to be seized. Groh v. Ramirez, 540 U.S. 551, 557 (2004).

A Fourth Amendment “seizure” occurs when “there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984); United States v. Chadwick, 433 U.S. 1, 13, n. 8 (1977). Ownership is not a requirement of “possession”; a person need only show “dominion and control” over an item in order to demonstrate a possessory interest in it. See United States v. Perea, 986 F.2d 633, 639-40 (2d Cir. 1993) (citing Rakas v. Illinois, 439 U.S. 128, 144 n. 12, 149 (1978)).

The Fourth Amendment’s sequence of “search” then “seizure” makes sense in the physical world, where police get a warrant to search a house or office and then seize the physical items found inside. In the digital context, however, that sequence typically is reversed, with police seizing an electronic device first and then searching its contents, oftentimes off-site and many weeks later, and increasingly with sophisticated forensic software and hardware. See, e.g., In re Search of 3817 W. W. End, First Floor Chicago, Illinois 60621, 321 F. Supp. 2d 953, 958 (N.D. Ill. 2004).

Practice Point: Always check state law for more expansive protection

The Fourth Amendment is the minimum standard that applies to state and federal law enforcement across the country. Mapp v. Ohio, 367 U.S. 643, 655 (1961). Each state has the “power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so.” Cooper v. California, 386 U.S. 58, 62 (1967). Accordingly, always check the law of your local jurisdiction for controlling statutes or court opinions that may provide you with legal arguments in addition to those under the Fourth Amendment.

B. Digital is Different

One of the most pressing challenges the courts currently are confronting is how to apply the Fourth Amendment’s legal protections, conceived of in the 18th century, to this century’s modern electronic devices and data. In his 2012 concurring opinion in United States v. Jones, 132 S.Ct. 945 (2012), a case dealing with police tracking of a car for almost one month with a GPS device, Justice Samuel Alito noted that while courts “must assur[e] preservation of that degree of privacy against government intrusion that existed when the Fourth Amendment was adopted. . . it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case.” Jones, 132 S.Ct. at 958 (Alito, J., concurring in the judgment).

This has caused the high court to tread cautiously when confronting new technologies, while making faulty analogies to earlier cases involving less sophisticated law enforcement techniques. However, the two most recent Supreme Court decisions dealing with newer law enforcement techniques show the Court is willing to finally confront new technologies head on. The conclusion to be drawn from these cases, and which criminal defense lawyers must emphasize, is that digital is different.

United States v. Jones

In United States v. Jones, 132 S.Ct. 945 (2012), the FBI installed a GPS tracking device onto Jones’ car and tracked his movements over 28 days. The Supreme Court unanimously ruled the installation of a GPS device on a car to be a “search” under the Fourth Amendment. The Jones majority opinion focused on the physical intrusion onto the car in order to install the GPS device, but five justices of the Court signed onto concurring opinions expressing concern that using technology to track a person’s public movements could violate the Fourth Amendment even without a physical intrusion onto private property. See Jones, 132 S.Ct. at 954-55 (Sotomayor, J., concurring); 132 S.Ct. at 961-63 (Alito, J., concurring). Although the Court’s decision in United States v. Knotts, 460 U.S. 276 (1983), found no expectation of privacy in public movements and reserved the right to consider “dragnet-type law enforcement practices” in the future, the premise of the concurring opinions in Jones was that Knotts did not control the question of longer-term GPS monitoring. In other words, the primitive beeper device in Knotts that enabled short term monitoring of a person’s location was constitutionally different than a GPS device or other technology that permits long-term monitoring. Justice Alito, joined by three other justices, wrote “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Jones, 132 S.Ct. at 964 (Alito, J., concurring) (citing Knotts, 460 U.S. at 281–282). Justice Sotomayor, writing for herself, agreed and noted “even short-term monitoring” requires “particular attention” because of the nature of GPS surveillance. Jones, 132 S.Ct. at 955 (Sotomayor, J., concurring).

In just two years, this approach in the Jones concurring opinions became the majority opinion in Riley v. California, 134 S.Ct. 2473 (2014).

Riley v. California

In Riley v. California, 134 S.Ct. 2473 (2014), the court was confronted with the issue of whether police could search the data on a cell phone incident to arrest. One of the exceptions to the Fourth Amendment’s warrant requirement is the “search incident to arrest” exception. In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court ruled that upon a lawful arrest, police can search an arrestee and items within his immediate control contemporaneously with arrest and without a warrant or any individualized suspicion. Chimel, 395 U.S. at 763. A few years later, in United States v. Robinson, 414 U.S. 218 (1973), the Court approved the warrantless search of a pack of cigarettes found in an arrestee’s pockets under that exception. In the years to follow, lower courts extended Robinson to other personal items like wallets, address books and purses. See, e.g., Curd v. City Court of Judsona, Arkansas, 141 F.3d 839, 843 (8th Cir. 1998) (purse); United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993) (address book); United States v. Watson, 669 F.2d 1374, 1383-84 (11th Cir. 1982) (wallet).

Riley resolved that split by ruling that police could not search a cell phone’s data incident to arrest. It reached that result by (a) finding the traditional justifications for the search incident to arrest exception—officer safety and evidence preservation—did not apply to cell phones, and (b) focusing on the quantity and quality of data stored on modern cell phones. Concerns over privacy ultimately outweighed the police’s need to search the phone without a warrant.

At its core, Riley refused to extend a pre-digital case—Robinson—to modern technologies, appreciating that a cigarette pack and a cell phone are not the same. So the real promise of Riley is the Court’s recognition that when it comes to constitutional protections, digital is different. As the Court noted:

…the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years.

Riley, 134 S.Ct. at 2493.

Read together, Jones and Riley provide a blueprint for arguing that the nature of digital devices means older cases involving physical items or less invasive government intrusions do not control questions of modern electronic search and seizure.

III. How the Fourth Amendment Applies to Electronic Devices

The first issue in any constitutional analysis of a search and seizure is: Does the Fourth Amendment apply? The Fourth Amendment applies when (1) a person, house, paper or effect (2) has been “searched” or “seized” by (3) a government actor.

A. Papers and Effects

Electronic Devices are Containers and “Effects”

The Supreme Court has made clear that the Fourth Amendment protects “the owner of every container that conceals its contents from plain view,” equating “container” with the word “effect” specifically contained in the Fourth Amendment. United States v. Ross, 456 U.S. 798, 822-23 (1982). Until Riley, the Supreme Court never directly and specifically addressed electronic devices. After Riley, it is clear that computers, cell phones, digital cameras and other electronic devices are clearly containers and “effects” under the Fourth Amendment. Riley, 134 S.Ct. at 2485 (analyzing whether cell phone could be searched incident to arrest by looking at justifications for the application of the doctrine “to this particular category of effects”) (emphasis added); see also United States v. Al-Marri, 230 F.Supp.2d 535, 541 (S.D.N.Y. 2002) (treating computer as a closed container); In re Grand Jury Subpoena Duces Tecum, 846 F.Supp. 11, 12-13 (S.D.N.Y. 1994) (analogizing computer hard drives to file cabinets); United States v. Chan, 830 F.Supp. 531, 534-35 (N.D.Cal. 1993) (analogizing “electronic repository for personal data” to “personal address book”).

Defense attorneys must stress, however, that while electronic devices carry some attributes of traditional physical containers, the immense storage capacity of cell phones, coupled with the breadth of sensitive and personal information stored on them, means courts should avoid what the Supreme Court in Riley termed “strained” analogies to physical items. Riley, 134 S.Ct. at 2491. Riley noted that an argument that physical items are similar to computers was like “saying a ride on horseback is materially indistinguishable from a flight to the moon.” Id. at 2488. Other courts also have stressed that “relying on analogies to closed containers or file cabinets may lead courts to ‘oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of massive modern computer storage.’” United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999) (citing Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. & Tech. 75, 104 (1994)).

Data Stored in Electronic Devices are Fourth Amendment “Papers”

These concerns are particularly acute because the data stored inside these electronic devices are the “papers” the Fourth Amendment was concerned about. The Ninth Circuit has explained that the “private information individuals store on digital devices” is “their personal ‘papers’ in the words of the Constitution.” United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013) (en banc). The Tenth Circuit has noted personal computers “contain (or at least permit access to) our diaries, calendars, files, and correspondence—the very essence of the ‘papers and effects’ the Fourth Amendment was designed to protect.” United States v. Christie, 717 F.3d 1156, 1164 (10th Cir. 2013). Similarly, the Eleventh Circuit has explained “[c]omputers are relied upon heavily for personal and business use. Individuals may store personal letters, e-mails, financial information, passwords, family photos, and countless other items of a personal nature in electronic form on their computer hard drives.” United States v. Mitchell, 565 F.3d 1347, 1351 (11th Cir. 2009).

Because these digital “papers” catalogue a person’s correspondence, affiliations and associations, electronic devices also trigger First Amendment protections. The Supreme Court has made clear that government attempts to seize and search materials that may be protected by the First Amendment demand that “the requirements of the Fourth Amendment must be applied with ‘scrupulous exactitude.’” Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)).

B. “Searched” or “Seized” – Standing

“Standing” in the Fourth Amendment context is intertwined with substantive Fourth Amendment protections, rather than by reference to traditional judicial standing or any independent “Fourth Amendment standing” doctrine. Minnesota v. Carter, 525 U.S. 83, 88 (1998); Rakas v. Illinois, 439 U.S. 128, 140 (1978); United States v. Castellanos, 716 F.3d 828, 832 n. 3 (4th Cir. 2013). Thus, a person must show that he has a possessory interest in the item that was seized or searched, or that he had a reasonable expectation of privacy in the device, in order to have standing to challenge that search.

Expectation of Privacy Exists In Personal Electronic Devices

The question of whether the government’s action is a “search” or “seizure” is easily settled when it comes to the direct capture of electronic devices and a review of the data within them. Numerous courts have specifically recognized an expectation of privacy in a person’s own electronic device, like a computer or cell phone. See, e.g.,Cotterman, 709 F.3d at 964 (expectation of privacy in files stored on personal computer); United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) (expectation of privacy in personal cell phone).

The more challenging scenarios will be cases involving employer-owned electronic devices; situations involving electronic devices used by a specific suspect, though not necessarily owned by him; and “abandoned” electronic devices. In these cases, a court must determine whether the individual has “standing” to challenge the search or seizure.

Totality of Circumstances Analysis

No “single factor” determines whether a person can claim Fourth Amendment protections and no “talisman” determines whether an expectation of privacy is considered reasonable. Oliver v. United States, 466 U.S. 170, 177-78 (1984); O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (O’Connor, J., concurring). Instead, expectations of privacy “must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128, 143 n. 12 (1978).

Instead, courts must consider the totality of the circumstances in each specific scenario to determine whether there is an expectation of privacy in a particular item searched or seized by law enforcement. United States v. Gutierrez-Casada, 553 F.Supp.2d 1259, 1262 (D.Kan. 2008) (citing Rakas v. Illinois, 439 U.S. 128, 152 (1978) (Powell, J., concurring). The Fifth and Ninth Circuits have identified a number of factors to be considered in finding a defendant has standing to challenge a search of an electronic device. United States v. Finley, 477 F.3d 250, 258-59 (5th Cir. 2007); see also United States v. Lopez-Cruz, 730 F.3d 803, 808 (9th Cir. 2013). These include:

Whether the defendant has a property or possessory interest in the thing seized or the place searched;

Whether he has a right to exclude others from that place;

Whether he exhibited a subjective expectation of privacy that the place would remain free from governmental intrusion;

Whether the defendant took normal precautions to maintain privacy; and

Whether the defendant was legitimately on the premises.

Finley, 477 F.3d at 258-59.

In Finley, the Fifth Circuit found an employee could assert an expectation of privacy in a cell phone issued to him by, and belonging to, his employer, which he was permitted to use for personal purposes. United States v. Finley, 477 F.3d at 254. Although the employer had a property interest in the phone, that was not a dispositive factor in determining whether Finley had standing. Instead, the Court noted Finley had the right to exclude others from using the phone and took precautions to keep the data on the phone private. Nor did it matter that Finley’s employer could have seen data on the phone. like text messages, if it had asked for the phone back because that didn’t mean he surrendered an expectation of being free from government intrusion. Id. at 259.

Similarly, in United States v. Lopez-Cruz, the Ninth Circuit found a defendant had Fourth Amendment standing to challenge the search of a cell phone found in the car he was driving, even though he admitted to officers the phone did not belong to him, because he possessed the phone and used it and did not try to throw the phone out of the car when stopped by police. United States v. Lopez-Cruz, 730 F.3d 803, 805-06, 808 (9th Cir. 2013). In other words, as the Supreme Court has explained, while “property ownership is clearly a factor to be considered,” in determining whether there is a Fourth Amendment expectation of privacy, it is “neither the beginning nor the end” of a court’s analysis. United States v. Salvucci, 448 U.S. 83, 91 (1980); see also Lopez-Cruz, 730 F.3d at 808.

On the other hand, courts have rejected a claimed expectation of privacy merely because a person physically possessed or controlled the phone, without some other evidence demonstrating an expectation that the contents of the phone would remain private. United States v. Mercado-Nava, 486 F.Supp.2d 1271, 1276 (D. Kan. 2007). Similarly, state courts have reached conflicting decisions about whether there is an expectation of privacy in text messages sent to someone else’s phone. Compare State v. Hinton, 179 Wash.2d 862, 319 P.3d 9 (2014) (expectation of privacy in text messages sent to another’s phone under state constitution) with State v. Patino, 93 A.3d 40, 55-58 (2014) (no expectation of privacy in text messages sent to someone else’s phone).

Bottom line: The issue of standing is a fact-specific one that will vary from case to case; however, merely because a person is not the legal owner of an electronic device does not preclude him from having Fourth Amendment standing to challenge the government’s seizure of that device and search of the evidence stored within. Understanding this is crucial to determining whether a person has an expectation of privacy in searches of computers or cell phones provided by an employer or other third party. See, e.g., Mancusi v. DeForte, 392 U.S. 364 (1968) (work environment and terms of employment relevant in determining expectation of privacy); United States v. Ziegler, 474 F.3d 1184 (9th Cir. 2007); Schowengerdt v. United States, 944 F.2d 483 (9th Cir. 1991).

C. Government Actor

Federal, State and Local Law Enforcement and Non-Law Enforcement Government Actors

The Fourth Amendment applies only to government actors. Burdeau v. McDowell, 256 U.S. 465, 475 (1921). This includes federal, state and local law enforcement. Mapp, 367 U.S. at 655. It also includes non-law-enforcement government actors, such as government employers, O’Connor v. Ortega, 480 U.S. 709, 715 (1986); public school officials, New Jersey v. TLO, 469 U.S. 325, 335-37 (1985); and government administrative regulators or inspectors. New York v. Burger, 482 U.S. 691, 700 (1987) (Fourth Amendment applies to administrative inspections designed to enforce commercial regulations); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534 (1967) (Fourth Amendment applies to administrative searches of building and housing inspectors).

The standard for administrative searches by government employers and other officials in civil contexts is more lax than the standards governing searches and seizures by law enforcement. For example, a search of an employer-owned electronic device by a government employer for a non-investigatory, work-related purpose does not require a probable cause warrant and need only be “reasonable.” City of Ontario v. Quon, 130 S.Ct. 2619 (2010); O’Connor, 480 U.S. at 725-26. Similarly, administrative searches of “closely regulated” industries do not require a warrant. Burger, 482 U.S. at 702.

Be aware, though, that just because a warrant may not be required for some government actors does not mean the Fourth Amendment doesn’t apply. Even these sorts of non-criminal searches must be “reasonable,” and expansive searches motivated by a desire to investigate criminal, rather than civil, liability may violate the Fourth Amendment. Similarly, the Ninth Circuit has ruled that although a cursory search of an electronic device at the international border is permissible without a warrant or any individualized suspicion, a more thorough “forensic examination” of an electronic device at the border requires law enforcement to have a reasonable suspicion that criminal activity is occurring. Cotterman, 709 F.3d 952, 961 (9th Cir. 2013); see also United States v. Saboonchi, 990 F.Supp.2d 536, 569 (D.Md. 2014).

Private Searches

The Fourth Amendment can also apply to the actions of private parties if they act as an “instrument or agent” of the government. Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971); United States v. Young, 153 F.3d 1079, 1080 (9th Cir. 1998); United States v. Bennett, 709 F.2d 803, 805 (2d Cir. 1983). Whether a search is conducted by or on behalf of the government or by a private party depends on:

(1) whether the government knew and approved of the search or seizure; and

(2) whether the private party intended to help law enforcement or was motivated by the party’s own motives.

In the digital context, many electronic searches involve a private party. For example, in United States v. Crist, a private party took a computer, thought to be abandoned, home with him; while looking through its contents, he discovered child pornography and called the police. United States v. Crist, 627 F.Supp.2d 575, 577-78 (M.D.Pa. 2008). In United States v. Ahrndt, 2013 WL 179326, *2-4 (D.Ore. Jan. 17, 2013) (unpublished), a private person accessed a neighbor’s computer files he had inadvertently shared over the Internet in iTunes. Numerous other cases document searches of workplace computers by both government and private employers. See, e.g., United States v. Simons, 206 F.3d 392, 398-99 (CIA employee’s computer could be searched by government officials pursuant to CIA Internet policy); United States v. Ziegler, 474 F.3d 1184, 1191-93 (9th Cir. 2007) (employer could consent to search of work computer). In these scenarios, the defendant must first demonstrate that the private search was really a government search done at the behest of a government actor for a law enforcement or government purpose. A finding that a search is solely done by a private party or employer, even when the evidence or information is turned over to law enforcement, will not trigger Fourth Amendment protections.

However, even if a search is initially found to be a solely private search, the individual user’s expectation of privacy is not necessarily extinguished. See Jacobsen, 466 U.S. at 115. Rather, courts have to look beyond the private citizen’s action and examine any government action that exceeds the scope of what the private party knows. In other words, a search that begins as inherently as private can become a government search if the government expands the scope of the private search. SeeWalter, 447 U.S. at 657.

When it comes to electronic searches, federal circuit courts have split on how to determine the scope of a private computer search. In United States v. Runyan, 275 F.3d 449 (5th Cir. 2001), the Fifth Circuit found that the private search of one file on a disk allowed a private party to turn over the entire disk to the government for a warrantless search. Runyan, 275 F.3d at 464-65. Conversely, the Sixth Circuit ruled in United States v. Lichtenberger, — F.3d —, 2015 WL 2386375 (6th Cir. 2015), that although the government could look at some files previously viewed by a private citizen, without a warrant, they could not look at other files not viewed by the private citizen even when stored on the same computer as the previously viewed files. Lichtenberger, 2015 WL 2386375, *11. The Sixth Circuit’s decision was motivated, in part, by the concerns identified by the Supreme Court in Riley, specifically that “the nature of the electronic device greatly increases the potential privacy interests at stake.” Id. at *8 (citing Riley, 134 S.Ct. at 2488).

Defense lawyers should argue the Sixth Circuit’s approach, noting that the breadth of information stored on modern electronic devices means a private search must be cabined as narrowly as possible to only cover previously viewed individual files and nothing more.

IV. Conclusion

Determining whether the Fourth Amendment applies to an electronic device is, of course, just the first step. As a zealous criminal defense lawyer, once you have explained why the Fourth Amendment applies, you will have to then argue why the Fourth Amendment’s requirements were violated. Perhaps the government failed to obtain a warrant; maybe the warrant was too broad or the probable cause too stale. But these arguments can’t be made until you understand how the Fourth Amendment applies to searches of electronic devices. While searches of personal electronic devices are analytically easy, issues surrounding shared electronic devices, employer-issued devices, and searches by private citizens are more complicated.

About the AuthorHanni M. Fakhoury is a Senior Staff Attorney with the Electronic Frontier Foundation (“EFF”) in San Francisco, where he focuses on criminal law issues in emerging technologies and represents indigent criminal defendants on appeal in the Ninth Circuit Court of Appeals. Before joining EFF, he was a federal public defender in San Diego.

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